Ambili Kumar vs Sadasivan
2024 Latest Caselaw 15789 Ker

Citation : 2024 Latest Caselaw 15789 Ker
Judgement Date : 6 June, 2024

Kerala High Court

Ambili Kumar vs Sadasivan on 6 June, 2024

Author: Kauser Edappagath

Bench: Kauser Edappagath

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
        THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
  THURSDAY, THE 6TH DAY OF JUNE 2024 / 16TH JYAISHTA, 1946
                   OP(C) NO. 699 OF 2024
  I.A.NO.4/2024 IN OS NO.11 OF 2023 OF ASSISTANT SESSIONS
COURT/SUB COURT / COMMERCIAL COURT, CHENGANNUR


PETITIONER/PETITIONER/PLAINTIFF:

         AMBILI KUMAR
         AGED 45 YEARS
         S/O MANIYAN AACHARI, A.K. PALACE VEETTIL
         AAYIKATTU MURI, CHINGOLI VILLAGE,
         KARTHIKAPALLY TALUK, CHEPPAD P.O.,
         ALAPPUZHA DISTRICT., PIN - 690507
         BY ADVS.
         K.SHAJ
         BEENA N.KARTHA
         C.IJLAL
         POORNIMA RAJAN
         ARUN CHAND
         BHARAT VIJAY P.
         MAJID MUHAMMED K.
         MINU VITTORRIA PAULSON
         GOPIKA GOPAL
         ARCHANA P.P.
         AKHILA HUSSAIN Z.


RESPONDENT/COUNTER PETITIONER/DEFENDANT:

         SADASIVAN
         AGED 55 YEARS
         ASHARIPARAMBIL VEETTIL, CHENGANNUR,
         CHENGANNUR P.O., ALAPPUZHA DISTRICT.,
         PIN - 689121
 OP(C) NO. 699 OF 2024

                                    - : 2 :-

            BY ADVS.
            P. THOMAS GEEVERGHESE
            TONY THOMAS (INCHIPARAMBIL)(K/810/2010)
            AMRUTHA K.P.(K/836/2020)
            SRADHA MOHAN(K/001041/2022)
            SAGAR ROSHAN(K/3985/2023)



     THIS     OP   (CIVIL)    HAVING           COME   UP    FOR    ADMISSION   ON
06.06.2024,    THE    COURT    ON      THE       SAME      DAY    DELIVERED    THE
FOLLOWING:
 OP(C) NO. 699 OF 2024

                                 - : 3 :-




                          JUDGMENT

Exhibit-P5 order dismissing an application to appoint an

Advocate Commissioner and Surveyor is under challenge in this

original petition.

2. The petitioner is the plaintiff and the respondent is the

defendant in O.S.No.11 of 2023 on the files of the Additional Sub

Court, Chengannur (for short, the trial court').

3. The suit is one for money. The case of the plaintiff is that

he and the defendant entered into an agreement for constructing a

building in the plaint schedule property of the defendant and

accordingly, he constructed the building in accordance with the terms

of the agreement. However, out of Rs.34,52,400/- due to him from

the defendant for the construction of the building as per the

agreement, the defendant paid only Rs.22,00,000/-. It is to realize

the balance amount, the suit was instituted.

4. After the defendant entered appearance, the plaintiff filed

I.A.No.1 of 2023 to appoint an Advocate Commissioner. Accordingly,

the Advocate Commissioner was appointed and the commission OP(C) NO. 699 OF 2024

- : 4 :-

report was filed. Thereafter, the defendant was set ex-parte, and the

ex-parte order was set aside. He filed a written statement denying the

plaint claim. When the suit was listed for trial the plaintiff filed

I.A.No.4 of 2024 to appoint an Advocate Commissioner to ascertain

certain matters with regard to the cost of the construction of the

building with the help of the Assistant PWD Engineer, Chengannur.

Ext.P3 is the said application. Though the defendant did not file any

objection to Ext.P3, the trial court dismissed the same, as per Ext.P5.

Challenging the said order, the petitioner has approached this Court.

5. Heard both sides.

6. The defendant filed written statement only after the

commissioner appointed as per I.A.No.1 of 2023 filed the report. The

earlier Advocate Commissioner was not assisted by an expert.

I.A.No.4 of 2024 has been filed to appoint an Advocate Commissioner

with the help of an expert to ascertain certain matters with regard to

the cost of construction of the building. Ext.P3 application was

dismissed by the trial court only on the ground of delay. But the

pleadings in the original petition would show that there was no

posting for pre-trial steps. Since the defendant has raised various OP(C) NO. 699 OF 2024

- : 5 :-

contentions with regard to the construction made by the plaintiff, the

inspection of the building by the Commissioner with the help of an

expert is necessary for proper adjudication of the dispute between the

parties. Hence, the trial court was not justified in dismissing Ext.P3.

Accordingly, Ext.P5 order is set aside and Ext.P3 stands allowed.

This original petition is allowed as above.

Sd/-

DR.KAUSER EDAPPAGATH, JUDGE AS OP(C) NO. 699 OF 2024

- : 6 :-

APPENDIX OF OP(C) 699/2024

PETITIONER EXHIBITS:

EXHIBIT P1 THE TRUE COPY OF THE PLAINT DATED 11/04/2023 IN O.S. NO. 11/2023 ON THE FILES OF THE SUB COURT, CHENGANNUR. EXHIBIT P2 THE TRUE COPY OF THE WRITTEN STATEMENT DATED 08/01/2024 FILED BY THE RESPONDENT IN O.S. NO. 11/2023 ON THE FILES OF THE SUB COURT, CHENGANNUR.

EXHIBIT P3 THE TRUE COPY OF I.A. NO. 4/2024 DATED 26/02/2024 IN O.S. NO. 11/2023 PENDING BEFORE THE SUB COURT, CHENGANNUR. EXHIBIT P4 THE TRUE COPY OF I.A. NO. 5/2024 DATED 26/02/2024 IN O.S. NO. 11/2023 PENDING BEFORE THE SUB COURT, CHENGANNUR. EXHIBIT P5 THE TRUE COPY OF THE ORDER DATED 04/03/2024 IN I.A. NO. 4/2024 IN O.S. NO. 11/2023 OF THE SUB COURT, CHENGANNUR.